If you have decided to divorce your spouse, you may be concerned about maintaining your current financial quality of life. This concern may be more prevalent in situations with spouses who have a large income disparity or if one spouse stayed at home to maintain the house or care for children. Spousal support was created to help the lower-earning spouse support themselves in these situations. Spousal support is not automatically given, so it is important to understand when it can be requested and what factors the court will consider when granting the request.
Spousal support is not awarded to one spouse or the other based on gender. Instead, spousal support is tied to the incomes of each spouse and the difference between them. Legally, either spouse can request alimony during a divorce, but they must prove a need for it to be granted. If support is ordered, payments will be made from the higher-earning spouse to the lower-income spouse.
Generally, spousal maintenance is ordered if the lower-earning spouse’s income is less than 2/3rds of the higher-earning spouse’s income. The duration of spousal support payments depends on the length of the marriage:
There are two types of spousal maintenance in New York: temporary and post-divorce.
Temporary spousal maintenance, also known as “pendente lite” maintenance, occurs during the separation period during the divorce. These payments are made while the divorce is still pending and are meant to provide support to reach the pre-divorce standard of living. Temporary alimony is only meant to supply short-term support and ends once the final order of maintenance is put into place by a judge. It is calculated using a fixed formula that depends primarily on the income and other earnings of both spouses. If these temporary alimony payments are to be made concurrently with child support payments, the amounts used in the calculation will be adjusted to compensate for the amount paid in child support.
Post-divorce spousal maintenance begins once the divorce is final and is meant to ensure that the lower-earning spouse can still support themselves. Post-divorce spousal maintenance can be either durational or permanent. Durational support is meant to help support the spouse until they can learn skills that help them enter the workforce, while permanent support is applied when it is not feasible for the spouse to support themselves.
The amount and duration of these payments depend on many factors, but they primarily depend on the length of the marriage and each spouse’s income. Post-divorce maintenance will consider more factors than temporary support. The court will use statutory guidelines to determine what the baseline level of support should be, but the judge has the discretion to decide if that amount should be increased or decreased.
A: The law states that all forms of income can be used when calculating spousal support. Any W-2 or self-employment income will be considered, but so will any income from any real estate that you rent out to a tenant. The court can determine if the reported numbers are not logical. For example, one party owns a business that operates mostly on cash. They report $50,000 a year in income but live in a $1 million home. In this situation, an income disparity can be assumed.
A: Spousal support is always calculated prior to child support because it impacts the income of each spouse that is considered for child support. The party paying spousal support will deduct the spousal support payment amount from their income, and the party receiving spousal support will add that amount to their income. This new income is used when calculating child support payments.
A: A spousal support modification can be requested by either spouse if there is a substantial change in financial circumstances. For example, if the party paying spousal support loses their job, or their pay is reduced, they can request that the payments be lowered or stopped. The payments can also be stopped if the party receiving the support gets a job and no longer needs it. The modification must be granted by the court before the payments can change.
A: Spousal support payments are generally ordered to be made each month. If the spouses can create an agreement for how the payments will be handled, such as a monthly direct deposit, the court will not interfere. If the parties cannot agree, the court will issue an income withholding order to ensure that the payments are made continuously and on time. The paying spouse’s employer will deduct the payments from their wages and forward them to the recipient spouse.
A: You are not legally required to have a Rochester, NY, Spousal Support Lawyer if you are going through a divorce, but it is not often recommended to attempt the process yourself. If spousal maintenance will be a factor in your divorce, an attorney can be useful to both the payer and payee. They can help ensure that you are not railroaded by the other party and find all applicable income that should be input into the calculation.
When you are divorcing your spouse, there are many issues that must be considered to ensure that you leave the marriage with everything to which you are entitled. One of those issues is spousal support. Whether you would be the paying or receiving spouse, Trotto Law Firm, P.C., can help ensure that your rights are protected by providing the judge with all relevant information for making a spousal support determination. Reach out to our office today if you are going through a divorce and have spousal maintenance questions.
Contact us today using our consultation form below: